Keller v Keller

[2009] NSWDC 172

CITATION:	Keller v Keller [2009] NSWDC 172
HEARING DATE(S):	22 June 2009
JUDGMENT DATE:	29 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Leave to commence proceedings is refused. The plaintiff should pay the defendant’s costs of the notice of motion on the basis that both motions were heard together and treated as the one motion. In other words, there should be only one set of costs.
CATCHWORDS:	LIMITATIONS - Motor Accidents Compensation Act - application for leave to commence proceedings - full and satisfactory explanation - no full account of plaintiff's knowledge and belief - time limit in s 109 (2)
LEGISLATION CITED:	Motor Accidents Compensation Act
CASES CITED:	Figliuzzi v Yonan 2005 NSWCA 290 Holt v Wynter (2000) 49 NSWLR 128
PARTIES:	Jodie KELLER Jonathon KELLER
FILE NUMBER(S):	312/09
COUNSEL:	Mr Wilson for Plaintiff Mr Guihot for Defendant
SOLICITORS:	Stacks Southern Lawyers Moray & Agnew

1. Mrs Keller was injured in a motor vehicle accident that occurred on 6 July 2000 when a vehicle driven by her then boyfriend, but now husband, failed to stop at a T-intersection and collided with headstones in a cemetery. He was breathalysed with a reading of 0.04. Ms Keller was aged eighteen years and five months, having been born on 23 February 1982. She completed the HSC in 1999 and was working at a Goulburn apartment store.

2. She was taken by ambulance to Goulburn Base Hospital but not admitted. The next day she felt faint and re-attended Goulburn Base Hospital and had a day off work.

3. Thereafter she says she experienced ongoing neck pain in increasing severity and obtained symptomatic relief by way of physiotherapy and analgesia prescribed by her general practitioners until in 2007 when she was referred for an MRI and to see a specialist from whom she received some injections.

4. She says that she was unaware that her boyfriend had any insurance that would cover her injuries, although she was aware that he had a property damage policy, apparently with the NRMA. In regard to that she was interviewed by an investigator shortly after the accident. The insurer declined Mr Keller’s claim on the basis of his blood alcohol reading. Mrs Keller says she was unaware that she could claim for an injury to herself until 2007 when, following upon her visits to her specialist, friends at work advised her she should see a solicitor.

5. This she did on 18 July 2007. A Motor Accidents Act claim form was lodged on 1 August 2007. A statement of claim was filed on 30 January 2009.

6. I have before me the defendant’s notice of motion to strike out the proceedings under s 109 of the Motor Accidents (Compensation) Act and the plaintiff’s notice of motion for leave to commence proceedings. S 109 provides that a claimant is not entitled to commence a claim more than three years after the date of the motor accident in question, except with the leave of the court. Subsection (2) provides that the three year time limit does not run for the period that the claim has been referred to an assessor and for two months after a certificate of assessment or exemption is granted.

7. Subsection (3) provides that the court must not grant leave unless (a) a full and satisfactory explanation has been made for the delay and (b) the total damages of any kind likely to be awarded to the claimant are not less than twenty-five percent of the maximum non-economic loss award that may be made under the Act as at the date of the motor vehicle accident, which in this case is sixty-five thousand dollars.

8. Full and satisfactory explanation is defined in s 66 of the Motor Accidents (Compensation) Act to mean a full account of the conduct, including the actions, knowledge and belief of the complainant from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay. So the Act defines what is meant by both a full explanation and a satisfactory explanation.

9. The defendant says that the explanation offered is neither full nor satisfactory, nor is the claim likely to result in damages in excess of sixty-five thousand dollars and that in any event the plaintiff has not established that the defendant can have a fair trial in all the circumstances.

10. As I said to Mr Wilson, who appears for the plaintiff in this matter, where a claim is substantially out of time, as this one certainly is, those acting for a plaintiff have an obligation, without reservation, to place everything before the court to justify the continuance of the proceedings. There is no place in such a situation for the presentation of ambit claims and the like as seems to have been done in this case where it has been alleged, without any evidence and in the face of the plaintiff’s own denial, that she suffered a head injury and brain damage in the subject accident.

11. It is for the plaintiff to establish that there is no substantial prejudice to the defendant if the proceedings were allowed to continue; that is that the defendant’s right to defend liability and damages can properly and adequately be answered by objective material placed before the court.

12. In the present case, Mrs Keller filed an affidavit in support, as did her solicitor, Mr Howard. These are exhibits A and B respectively. The defendant’s solicitors filed five affidavits in support, annexing a large amount of material, including general practitioner’s records that really should have come from the plaintiff at first instance. Mrs Keller was required for cross-examination and gave evidence.

13. The defendant tendered the general practitioner’s notes but no attempt was made to decipher the handwritten entries. They indicate that the plaintiff was seen both before and since the accident. She saw a doctor twice after the date of accident without apparently making any complaint of neck pain. On 27 February 2001 she had an after hours visit by Dr Storrier, her GP. The clinical notes read, in part:

“Migraines for two years, comes on any time, behind eyes. No warning, no nausea. Like a vice. Two to eight hours. Panadol doesn’t work. MVA eight to nine months ago. Few since then. Had blackout after MVA. Neck”, something indecipherable, “for” something indecipherable, “physio and X-ray.”

14. She was referred for a cervical spine X-ray and CAT scan of the brain, which was performed on 1 March 2001 with no abnormalities being detected in either area. On 28 March 2001 Dr Storrier recorded two migraines since last visit. Mrs Keller’s migraines reappear again on a visit note of 2 July 2007 with Dr Hutchins and also on 18 July 2007 when she was prescribed Inderal.

15. After the visit of 28 March 2001 there were eight general practitioner visits with no apparent complaint of neck pain until 13 August 2003 with Dr Ramasamy and a further visit on 21 August 2003 with Dr Burgess. The clinical notes for the first visit states, “dizzy and light headed today, shaking one hour ago, previous vertigo x2, last two hours, tinnitus right ear prior to vertigo”. The note for Dr Burgess, states “intermittent vertigo still, last two hours, headache, intermittent”. After this visit, that is 21 August 2003, there were ten general practitioner visits with no apparent complaint of neck pain until 23 January 2007. On that date Dr Ramasamy records a complainant of constant neck pain since the motor vehicle accident in 2000. Thereafter, from that date to 25 September 2007 there are fourteen visits, mostly with Dr Drake and/or Dr Hutchins (the records are somewhat confusing in that regard) where there are complaints of ongoing neck problems relative to the accident.

16. On 25 September 2007, 15 January 2008 and 5 March 2008 there are visits which appear to be unrelated to any motor accident problems. On 23 April 2008, 19 December 2008, 29 December 2008 and 3 March 2009 there are visits with Dr Gerard that appear to be related to the motor vehicle accident.

17. Dr Hutchins referred the plaintiff for an MRI in June 2007. The MRI took place on 22 July 2007 of both the cervical spine and the brain. The cervical spine was reported as otherwise normal and unremarkable. However, there was early desiccation of discs from C2 to C6. The intervertebral discs appeared relatively well preserved. There was no bony or disco-genic impingement on the central canal or neural foramina at any of the levels examined. There were normal cervical canal dimensions and no evidence of central canal stenosis. The cervical spine MRI was otherwise normal and unremarkable. As can be seen, it appears that that the cervical spine MRI was not indicative, apparently, of any disability.

18. Dr Speldewinde, a pain specialist, noted that the cervical MRI was normal as did Mrs Keller’s GP. Dr Speldewinde said in reports dated 28 August 2007 “The MRI scan is normal.”, and on 2 November 2007 in the following report:

“She has now completed a series of joint injections and is positive at the right C5/6 on repeated occasions and today this was repeated intra-articularly with cortisone, hoping for a longer period of useful reduction in pain. I have encouraged her to see a rehabilitation exercise therapist here for provision of self managed home neck exercise program and utilising special devices therapists have available to do this at home. I also encouraged her to participate in the one day intensive control of pain psycho-educational workshop run by Amanda Lucas, pain management specialist counsellor.

19. However, Dr Wallace, an orthopaedic surgeon who examined Mrs Keller on 6 June 2008, referred to this C2/C6 desiccation and concluded that Mrs Keller has sustained a musculo-ligamentous strain of the cervical spine and an internal disruption of the C5/C6 cervical disc, apparently because of the results Dr Speldewinde obtained from the facet joint injection at that level. Dr Wallace felt her condition was stabilised and she was fit only for full time light duties. He related her neck problems to the accident.

20. The defendant had Mrs Keller examined by Dr Cummine, an orthopaedic surgeon, on 10 March 2009. His physical examination findings were non-specific and her objective X-ray investigations were all, in his view, normal. He found her fit for full time employment. He felt her neck symptoms should have subsided six to twelve weeks after the accident and he could not see that there was a relationship between her current symptoms and the accident. Dr Cummine obtained a fuller patient history than did Dr Wallace, but in neither of either Dr Cummine or Dr Wallace’s reports is there any complaint of any psychological difficulty, although I note one GP reference to “mild depression” at a visit to Dr Hutchins on 29 December 2008. This is of relevance because there is an allegation of psychological injury in the form of depression caused by Mrs Keller’s ongoing physical problems.

21. In her evidence, Mrs Keller agreed that her answers to question 13 in the claim form that there was no alcohol or drugs involved was not correct and she was not sure how that answer had occurred, having regard to the fact that the NRMA had refused her then boyfriend’s property damage claim in 2000 because of alcohol. She said it was an honest mistake and that she knew that he had been drinking. She also agreed that apart from one or two days off work after the accident, any time off she has had to take for physiotherapy she has been able to make up by working through lunch or something of that nature. She has had some days off work to see specialists but otherwise has not really sustained any past economic loss.

22. She is currently in full time employment in a sales capacity, although she said that she had intended to study nursing and feels that she is now precluded from that profession. She agreed that her statement of claim and affidavits and particulars of injury that refer to her suffering a head injury and brain damage are not correct. She said that her psychological injury has come about over the last few years and she hadn’t discussed her emotions with a doctor until recently.

23. This is not really a case where the plaintiff’s symptoms have been delayed. They have been, in fact, unremitting since the accident for a period of almost nine years now, well past the Motor Accidents (Compensation) Act limitation of three years and indeed beyond the previously applicable six year limitation period.

24. Whilst I am prepared to accept that an eighteen year old may not at the time realise the possibility of any rights she may have had in regard to an injury in a car accident, she has since married and on 18 October 2002 left her previous employment because she was pregnant. She completed the HSC and her husband is an engineer, so that she is not without intellectual resources in that regard.

25. Both parties before me have relied upon a case of Figliuzzi v Yonan 2005 NSWCA 290 which was a majority decision of Tobias and McColl JJA. Santow JA was in the minority and the extent that any reliance can be placed on what His Honour said in that case must give way to the opinion of the majority. That is a principle of law of longstanding, one that unfortunately many practitioners seem to disregard in order to find judicial pronouncements support their case. The plaintiff seeks to rely on what Santow JA said in that case at paragraph 22 in persuading the court in regard to her present matter.

26. The factual differences between Figliuzzi and the present case are not insubstantial. Mrs Figliuzzi was a employee of the Legal Aid Commission. That is, she worked in a legal environment. Her situation was also complicated by the fact that she was injured on her way to work and was entitled to both Workers Compensation and compensation under the Motor Accidents (Compensation) Act. That is not the situation in the present case.

27. The legal principle to be distilled from the judgment of Tobias JA is that whether or not a belief of the claimant is bona fide or in all the circumstances reasonably held, the question to be determined is whether holding that belief the reasonable person in the position of the claimant would simply have left the matter at that and would have considered it unnecessary to make the very basic enquiry of a qualified person as to whether the belief was justified (see paragraph 102).

28. McColl JA, at paragraph 135 thought that a reasonable person who had been injured in a motor vehicle accident in 1997, which had significantly impacted all aspects of her life, would have realised that the bush lawyer approach she was taking was inappropriate or at least should be reviewed by a lawyer.

29. It is argued on Mrs Keller’s behalf that (1) at aged eighteen or nineteen she was unaware of any limitation periods; (2) she followed the guidance and direction of her medical practitioners faithfully; (3) she did not become aware of the nature of her injury until advised of the seriousness of her injury by a medical specialist, and; (4) that she sought prompt legal advice thereafter and made a prompt claim.

30. The issue is really not whether Mrs Keller knew that there were limitation periods to making a claim. In any event I would have thought that most reasonable people would recognise that the time for making a claim for some sort of compensation resulting from any injury is not unlimited. In other words, it is not reasonable to allow a situation to just drift along for a substantial number of years without doing anything about it. What Mrs Keller seems to be saying in her evidence and affidavits is that although she knew that she had been injured in the motor vehicle accident and was suffering ongoing and indeed worsening problems she was unaware that she could make a claim and was unaware that there was a time limit to making such a claim and she only became aware of that after her condition worsened, which was over six years after the accident and when some friends at work suggested to her that having regard to her ongoing problems, she ought to get some legal advice.

31. The plaintiff’s medical history has been fairly fully set out above. There have been additional visits to physiotherapists and chiropractors, some of whom have produced a report and some of whom are no longer contactable. However the plaintiff’s full medical history has not been commented on by any specialist. It seems the referral by Dr Storrier for X-ray and CT scans in 2001 was because of the complaints of migraine rather than anything to do with the motor vehicle accident, although there could be a relationship. Likewise the visits to her GP in August 2003 relate to some sort of vertigo from which she was suffering, but which also could be related to the motor vehicle accident. But there is no formal complaint of ongoing neck pain relating to the motor vehicle accident until 23 January 2007 and no complaint of any depression until 29 December 2008.

32. If in fact such things were occurring, a reasonable person in that situation should have sought legal advice much earlier than the plaintiff in fact did. There is no substantial reason why that did not occur much earlier than it did. The question to be asked is, would a reasonable person in the position of the plaintiff have failed to comply with the duty to commence proceedings within three years or would she have been justified experiencing the same delay before commencing proceedings? Having regard to the reasons of Tobias and McColl J JA referred to in the case of Figliuzzi and accounting for the factual differences it is difficult to see that a reasonable person in the plaintiff’s position would have been justified in experiencing a delay that extended beyond not only the Motor Accidents (Compensation) Act limitation but also the Limitation Act periods.

33. Further, whilst there has been a full account of Mrs Keller’s conduct and actions since the accident, the evidence as to her knowledge and belief at relevant times has not been full or comprehensive. She says she did not ask her husband about motor vehicle personal injury insurance. But as McColl JA said at paragraph 137 of Figliuzzi, “It’s difficult to believe that a person would have been unaware of third party insurance to cover personal injuries and the consequent rights of an injured person to at least get advice as to a prospective claim given the prevalence of publicity material within the community in that regard”.

34. Mrs Keller said that once she started working where she now works her older colleagues said that her problem should not have persisted for so long and she should see someone about it. Mrs Keller swore an affidavit on 25 July 2007 in support of her claim. She also made statutory declarations on 1 November 2007 and 25 February 2008 and swore an affidavit on 5 March 2009.

35. In the first affidavit the plaintiff said, amongst other things:

“At the time of the accident I was 18 years old. I didn’t know I could make a claim for the injuries I received. I was not aware of any proceedings requiring the filing of a motor accident claim form. At the time of the accident the NRMA interviewed me about the accident. I did not know what that was for.

On 18 July 2007 I attended upon Mark Howard, solicitor, at Stacks Southern Lawyers. He advised me about my rights under the Motor Accidents (Compensation) Act. Before the above date I was not aware of my rights. The reason I attended upon Mark Howard was because after Dr Hutchins spoken to me about referring me to a specialist in Canberra I was concerned as to how serious the injury may be. I spoke to friends at work who suggested I should see a lawyer. I then contacted Stacks, the law firm.”

36. In her first statutory declaration she says much the same:

“On 18 July 2007 I attended upon Mark Howard, solicitor at Stacks Southern Lawyers. He advised me of my rights under the Motor Accidents (Compensation) Act. Before 18 July 2007 I was not aware of my rights to make a claim for damages under the Motor Accidents Act. I was not aware I needed to serve a claim upon a third party insurer within six months of the date of the accident. I only became aware of this when I attended upon Mark Howard on 18 July 2007. I have never sought or received legal advice about this matter in the past from any other lawyer. The reason I attended upon Mark Howard was because after Dr Hutchins spoke to me about referring me to a specialist in Canberra I was concerned as to how serious the injury may be. I spoke to friends at work who suggested I should see a lawyer. I then contacted Stacks the law firm.”

37. In the second statutory declaration, again amongst other things, she said:

“On or around 9 July 2000 I was visited at the home by a man from the insurance company that provided property damage insurance in relation to my then boyfriend’s car. I think that the man was from the NRMA but I’m not certain about this. The man spoke to me about the accident and asked me questions including whether my boyfriend was speeding or were there other cars involved. He didn’t ask me about any injury I might have sustained. He stated that they were just working out whether they should be paying for the damage to my then boyfriend’s car.

On 2 July 2007 I returned to see Dr Hutchins to see what the results of the MRI scan were. Dr Hutchins informed me that the scan indicated that there was damage to the bones in my neck. He said I would need to see a specialist and referred me to Dr Speldewinde. I then realised I had sustained serious injury and the only time I had hurt my neck was in the car accident in 2000. I became afraid about the costs of treatment and the fact that I had missed work already due to my neck injury. I decided then that I should see a lawyer about what I should do.”

38. Finally, in the affidavit in support of her application Mrs Keller says:

“From 2001 to 2005 I saw a number of doctors in Goulburn for treatment of pain in my neck and also headaches. They prescribed more anti-inflammatory medications which provided little relief.

In February 2006, as a result of increasing neck pain, I attended McNamara Physiotherapy. I attended once a week for about six weeks. Physiotherapy provided little relief.

In April 2006 I went to Craig Hampton, chiropractor, at the Wellness Centre, Bradley Street, Goulburn. I attended there once a week for approximately three months. I had further X-rays at Craig Hampton’s request prior to starting treatment.

In July 2006 I began seeing Stacey Ridley, physiotherapist, at Park Road, Goulburn. I attended seven sessions of physiotherapy with Stacey on 10 and 19 July 2006, 24 October 2006, 7 and 16 November 2006 and 7 March 2007.

On 23 January 2007 I saw Dr Hutchins and was referred to Dr Drake at McKell Place Medical Centre, Goulburn for acupuncture. I saw Dr Drake once a week for two to three months and then once a fortnight for five months. This commenced in February 2007 and continued until June 2007.

In June 2007 I went back to Dr Hutchins as I had not noticed any improvement, despite the different treatments I had received. I was then referred for an MRI scan. My neck pain was increasing in its intensity.

On 18 July 2007 I attended upon Mark Howard, solicitor, at Stacks Southern Lawyers. He advised me about my rights under the Motor Accidents (Compensation) Act. Before 18 July 2007 I was not aware of my rights to make a claim for damages under the Motor Accidents Act. I was not aware I needed to serve a claim upon a third party insurer within six months of the date of the accident. I only became aware of this when I attended Mark Howard on 18 July 2007. I have never sought or received legal advice about this matter in the past from any other lawyer. The reason I sought advice from Mark Howard was because I was concerned as to how serious my injury may be after speaking with Dr Hutchins about referring me to a specialist in Canberra. Friends at work suggested I should see a lawyer. I then contacted Stacks, the law firm.

I commenced seeing Liz Barling at Goulburn Osteopathy on 8 August 2007. I am currently seeing her approximately once a week.

As a result of the motor vehicle accident I suffered the following injuries. Injury to cervical spine, head injury, brain damage, injury to left shoulder, injury to right shoulder, psychological injury. As a result of the subject motor vehicle accident I suffer the following disabilities. Constant aching at cervical spine, stiffness of cervical spine, sleep disturbance, difficulty driving a motor vehicle, difficulty attending to household duties, difficulty attending to gardening, difficulty attending a gym, difficulty playing sports, difficulty bending, difficulty twisting, difficulty performing leisure time pursuits.”

39. In essence, Mrs Keller says that she only was prompted to take the matter further by the MRI results referred to in the second statutory declaration as revealing “damage to the bones” in her neck. In fact, that is not the case. The MRI results have done nothing to indicate what Mrs Keller’s problem might be and her GP recognised that, noting as he or she did the desiccation between C2 to C6, as did, of course, her specialist Dr Speldewinde. There is nothing there about any damage to any bones.

40. It is difficult on the medical evidence to see that there was any additional advice after the second MRI that would have prompted a realisation that her condition was any more serious or worse than it already was. Rather, it appears that it was her co-workers who prompted her into action. Further, I cannot see the relevance of the fact that she followed her doctor’s advice. That was medical advice, of course, not legal advice. I suppose the contrary proposition would be noteworthy, but this fact seems to me to have little relevance to the failure to act issue. According to Mrs Keller, her symptoms became significantly worse, at least by February 2006, and still she did not see a solicitor until July 2007. In my view that is not reasonable.

41. I am therefore not satisfied that the plaintiff has made a full account of her knowledge and belief from the date of the accident until the date of her claim. I am also not satisfied that her explanation is satisfactory at law, because a reasonable person in her position would not be justified in experiencing the delay before claiming that she did.

42. As to the claim not reaching the sixty-five thousand dollars statutory limit, although the plaintiff has not met the non-economic loss threshold nor does there seem to be any substantial claim for past economic loss, I would concede that if she can establish a forty year future economic loss such a figure is likely to exceed the threshold and that is, of course, not counting out of pocket expenses and any domestic assistance claim that might be successful.

43. The defendant in this case also relies on the presumptive prejudice of the delay as well as affidavit evidence of the fact that some of the practitioners referred to by Mrs Keller are no longer available for reports or to give evidence. The New South Wales position on the overall discretion a court has in regard to limitation questions, is set out by Sheller JA in Holt v Wynter (2000) 49 NSWLR 128, particularly at 146-147. Referring to the High Court’s decision in Brisbane South Regional Health Area v Taylor his Honour said at 119:

“An application for an extension of time should be refused if the granting of the extension would result in significant prejudice to the potential defendant It is for the defendant to show some evidence of prejudice and for the plaintiff to establish that the prejudice is not significant. ”.

44. Mr Guihot advanced arguments that the defendant has been unable to conduct discreet surveillance of the plaintiff over the years, has been denied the opportunity of being involved in the plaintiff’s rehabilitation and would find it impossible to contest the recently known or recently disclosed psychological injury. Of course, had this claim taken its usual course the matter would probably have been finalised many years ago. However, the lack of a proper medical appraisal of the plaintiff’s history and the inability of the defendant to have investigated various medical situations as they occurred does, in my view, constitute a significant prejudice.

45. There is also an issue of contributory negligence. The plaintiff has given evidence that one person who was drinking with her boyfriend is still resident in Goulburn, but the other person is overseas. The ability of people to remember such inconsequential pre-accident activities nine years after the event with any degree of accuracy is improbable.

46. However, the most serious prejudice, in my mind, relates to the lack of the ability of the defendant to properly assess the plaintiff’s complete medical history, both at the time the events occurred and retrospectively. It is not an answer to that to say that the defendant’s doctor, Dr Cummine, had no such problems, because Dr Cummine did not have available to him the medical records that have been tendered in these proceedings, nor did Dr Wallace.

47. I accept that once the claim was made in July 2007 the matter became subject to the usual CARS processes. The s 109(2) time limit referred to is, in my view, a time limit that extends the three year limitation period, but does not apply to claims made after the three year period has expired without a claim being made within that period or the extended period. In other words, if a claim is made within three years but the CARS assessment process takes it beyond three years that time will not count as part of the three year limitation period, but if a claim is not made within the three year period in my view s109(2) has no application.

48. Having regard to the foregoing leave to commence proceedings is refused. The plaintiff should pay the defendant’s costs of the notice of motion on the basis that both motions were heard together and treated as the one motion. In other words, there should be only one set of costs.